Court of Appeal for Ontario

CITATION: R. v. Al-Kassem, 2015 ONCA 320

DATE: 20150508

DOCKET: C56888

Feldman, Pardu and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mohamad Al-Kassem

Appellant

Counsel:

Michael Dineen, for the appellant

James V. Palangio and Molly Flanagan, for the respondent

Heard: April 29, 2015

On appeal from the conviction entered on March 8, 2013 by Justice Nancy M. Mossip of the Superior Court of Justice, sitting with a jury.

By the Court:

[1] The appellant was convicted by a jury of criminal negligence causing death and leaving the scene of an accident. He appeals from the conviction for criminal negligence causing death on the basis that the verdict on that count was necessarily inconsistent with the jury’s verdict acquitting him of dangerous driving causing death for the same conduct. We agree that the verdicts are necessarily inconsistent, and that the appeal must therefore be allowed.

[2] The driving that led to both charges and to the death of Ronald Persaud was the culmination of a parking lot confrontation between the appellant and Mr. Persaud. At trial the appellant argued that he drove away to escape an attack by Mr. Persaud. He argued self-defence, accident and that his driving was not a marked or substantial departure from the norm expected of a reasonably prudent driver in those circumstances.

[3] The issue of inconsistent verdicts in a driving case was recently discussed by this court in R. v. Catton, 2015 ONCA 13, at para. 21:

Inconsistent verdicts are a subspecies of unreasonable verdicts: R. v. Pittiman, 2006 SCC 9, [2006] 1 S.C.R 381 at para. 6. If a trier of fact returns a conviction on one count (or against one accused), and an acquittal on another count (or against a co-accused), the inconsistency in the verdicts will only render the conviction unreasonable if the appellant can demonstrate that on any realistic view of the evidence, the verdicts cannot be reconciled on any rational or logical basis: R. v. McShannock (1980), 1980 CanLII 2973 (ON CA), 55 C.C.C. (2d) 53 (Ont. C.A.) at 56; Pittiman, at paras. 7-8.

[4] There can be no doubt that the act of driving a motor vehicle in a parking lot in such a fashion as to strike a nearby person and drag him under the car for some distance is objectively dangerous. In this context, what distinguishes criminal negligence from dangerous driving is the mental element. For criminal negligence the Crown has to prove that the conduct amounted to a marked and substantial departure from the conduct of a reasonably prudent driver. For dangerous driving, the Crown has to prove that the conduct amounted to a marked departure from the conduct of a reasonably prudent driver. There is no logical basis in this case upon which the jury could have found that both elements were present for the count of criminal negligence, but that one of those elements, a marked departure, was not proven for dangerous driving.

[5] The Crown argues that in the case, the elements of the actus reus of dangerous driving, such as the amount of traffic or the number of pedestrians that were present, are different from the elements of the actus reus of criminal negligence. It submits that the jury might have found that the manner of driving was not dangerous and acquitted the accused on that count for that reason, although it did find that the driving was a marked and substantial departure from the norm expected of a reasonable driver. We reject this submission. Here the identical conduct was alleged to have been the basis for both charges, and the actus reus was indisputably dangerous, driving rapidly forward to as to strike Mr. Persaud and drag him under the vehicle.

[6] By acquitting the appellant of dangerous driving causing death, the jury was not satisfied to the necessary standard that the appellant’s driving constituted a marked departure from the norm expected of a reasonable driver, and he is entitled to the benefit of the jury acquittal on that count. The Crown has not appealed from that acquittal, nor is there any suggestion that there would be any basis for such an appeal. To order a new trial on the criminal negligence count would necessarily invite another inconsistent verdict. For this reason, as in R. v. Catton and R. v. J.F. 2008 SCC 60, [2008] 3 S.C.R. 215, an acquittal on the criminal negligence count is the appropriate remedy.

[7] Given this conclusion it is not necessary to address the other grounds of appeal from the conviction for criminal negligence.

[8] We do observe that pursuant to s. 662(5) of the Criminal Code, where criminal negligence causing death by driving is not proven, dangerous driving causing death is expressly made an included offence. It is difficult to see what advantage there could be to including both counts separately on an indictment in circumstances like these rather than relying on the operation of s. 662(5). The risk is what occurred in this case: juror confusion or inconsistent verdicts. If a trial judge is compelled to instruct on separate counts in the indictment in these circumstances, it may be appropriate to instruct the jury that a conviction for the more serious offence necessarily requires a conviction on the lesser offence.

[9] The appellant also argues that his conviction for leaving the scene of the accident must also be set aside. He argues that while there may be no logical inconsistency between the conviction on this count and the disposition of the other counts, as in Catton at para. 29:

However, the irreconcilable inconsistency between the conviction on count one and the acquittal on count two, raises serious doubts about all of the convictions. The inconsistent verdicts on counts one and two suggest either a serious misunderstanding of the trial judge’s instructions, or a misguided compromise among the jurors as to the appropriate verdicts: McShannock, at p. 56. In either case the inconsistent verdicts undermine the reliability of all the convictions.

[10] In any event, the jury charge was flawed in respect of this charge in the instruction on “evidence to the contrary”. The trial judge correctly instructed the jury as follows:

You may conclude, in the absence of any evidence to the contrary, that Mr. Al-Kassem intended to escape civil or criminal liability for the accident by failing to do what the law requires of him. By evidence to the contrary, I mean evidence that you do not reject that leads you to believe or have a reasonable doubt that Mr. Al-Kassem intended to escape civil/criminal liability for that accident. Consider all the circumstances. It is for you to say.

[11] However, in the immediately following paragraph she indicated:

In this case, there is what is referred to above as “evidence to the contrary”. There is the evidence of Mr. Al-Kassem himself that he left the scene of the accident because he was afraid for his life and partly because he was an unlicensed driver. This evidence to the contrary, if you accept it, takes away the presumption that Mr. Al-Kassem left the scene of the accident to escape civil or criminal liability for the accident for failing to do what the law requires of him.

[12] This instruction took away the possibility that the presumption could be rebutted by evidence to the contrary which was not necessarily accepted, but which raised a reasonable doubt.

[13] For these reasons, the appeal is allowed, the conviction for dangerous driving causing death is set aside and an acquittal is entered on that count. The appeal is allowed on the conviction for leaving the scene of the accident, and a new trial is directed on that count.

Released: May 8, 2015

(K.F.) “K. Feldman J.A.”

“G. Pardu J.A.”

“David Brown J.A.”